by Chaim Weber

The Gemara in Bava Kamma (49b) says that a person’s property acquires what’s inside it even without the owner’s knowledge.

This is called kinyan chatzer.

How does kinyan chatzer work?

The Gemara in Bava Metzia presents three opinions:

Opinion #1 – Chatzer Acts like a Hand

The first opinion in the Gemara is that a chatzer acts like a hand – a yad.

We find that a hand has the ability to acquire by divorces. When describing the divorce process, the Torah says that the husband “places the get in her hand,” showing that a hand acquires what’s inside it.

Similarly, a chatzer acquires what’s inside it.

Opinion #2 – Chatzer Acts like a Shliach

The second opinion in the Gemara is that a chatzer acts as an emissary (shliach).

The Gemara in Kiddushin (41b-42a) learns from multiple sources that an emissary can act on behalf of someone else – this is known as shlichus. Based on shlichus, a chatzer acquires what’s inside it by acting as an emissary for its owner.

Even within this opinion, the Gemara notes that there are instances where a chatzer acts like one’s hand. For example, the chatzer of a girl below bas mitzvah acquires like her hand, as we find that a girl uses her hand to receive her get.

However, based on this, the Rif rules that a boy below bar mitzvah does not have kinyan chatzer. Why?

Unlike a girl, we never find that a boy acquires with his hand. Additionally, his chatzer can’t acquire through shlichus as a katan doesn’t have the ability to appoint a shliach.

Opinion #3 – Chatzer Acts like a Hand but is not Worse than a Shliach

The Gemara later in Bava Metzia (12a) brings Rav Ashi’s opinion that a chatzer acts like a hand. However, in cases where it can’t act as a hand, it can still act as a shliach.

Tosfos explains that chatzer only acts as a hand when the owner is nearby. When the owner isn’t nearby, it can’t function as an extension of the owner’s hand. In that case, a chatzer only works through shlichus.

It should be noted that this opinion may not be a stand-alone opinion but could be explaining Opinion #2 above.

Does The Chatzer Need to be Secure?

The Gemara says that kinyan chatzer only works if the chatzer is secure (mishtameres). If the chatzer isn’t mishtameres, it can’t acquire.

The Nimmukei Yosef (Bava Metzia 5a) explains this is based on the fact that a chatzer principally acts as a hand. Therefore, a chatzer needs to be secure, similar to the security offered by the hand’s domain.

The Gemara in Bava Metzia (11a) adds that even if the chatzer is not mishtameres, it can still acquire if the owner is beside the chatzer. Why?

Rashi and the Ritva explain that the owner’s presence turns the chatzer into a secure chatzer.

The Meiri (Bava Kamma 49b) explains differently: Although the chatzer isn’t secure, since the owners can acquire the item on their own, their chatzer can acquire it for them. Why would an ability to acquire it matter?

Possibly based on the principle of Rav Ashi – although the chatzer is lacking security and can’t act like one’s hand, it can still act as a shliach. (We’ll later see the opinion of the Ketzos Hachoshen who may disagree with this application.)

Chatzer Mehaleches – the Rashba’s Question

The Gemara in many places cites a rule that a chatzer needs to be stationary. If a chatzer isn’t stationary and can move on its own accord, it’s called a chatzer mehaleches and can’t acquire for its owner.

The Rashba (Bava Metzia 9b) wonders why this is true.

If chatzer was entirely based on one’s hand, we can understand why it can’t be movable. However, if chatzer is based off of shlichus (or like Rav Ashi that shlichus is a backup when it can’t act as a hand), why can’t a movable chatzer acquire? Let the chatzer acquire as a shliach?

The Ritva answers that a shliach is tasked with performing the will of the sender – his mission is to do what the sender asked. Thus, a shliach performs his shlichus based on the mindset of the sender.

A chatzer mehaleches that can move wherever it wants without the owner’s knowledge can’t be a shliach, as it can’t be assumed to be acting based on the mindset of the sender.

The Ketzos Hachoshen (Choshen Mishpat 200:1) answers that a chatzer only acts as a shliach when there are some similarities to a hand. For example, by a chatzer that is guarded but the owner is far from the chatzer – there we say the chatzer can still act as a shliach. However, by a chatzer that cannot act as a hand at all, like a chatzer mehaleches, such a chatzer cannot act as a shliach.

What About Hekdesh?

The Gemara in Bava Basra (79a) says that if hekdesh owns a pit and something falls into it, there is no penalty of me’ila (the misuse of hekdesh property).

The Ramban learns that although hekdesh acquires what fell into the pit through kinyan chatzer, there is no me’ila, as me’ila doesn’t apply to items that became consecrated on their own (like here where there was no act to consecrate it; it became hekdesh on its own by falling into the pit).

However, the Rashbam and Tosfos argue that the item that fell into the pit doesn’t become hekdesh at all. Why?

They hold that hekdesh doesn’t have a kinyan chatzer, as we never find hekdesh acquiring through its hand. The Agudah rules like this and adds that shuls and batei medrash also don’t have a kinyan chatzer. This is quoted as halacha by the Magen Avraham (154:23).

The Rashash and Tosfos Yom Tov ask that here as well, why don’t we say that a chatzer can still acquire through shlichus?

Rav Elchanan Wasserman zt”l answers that the institution of shlichus was never said by hekdesh. Although the Gemara does say that the Kohanim are shluchim when they perform the avodah, that only means that they have the power to perform the avodah, not that they are full legal emissaries.

The Ketzos Hachoshen gives a similar answer to what he used to explain chatzer mehaleches – that chatzer only acts as a shliach when there is some ability for it to act like a hand. As we never find that hekdesh has a hand to acquire, it also can’t act as a shliach to have a kinyan chatzer.